ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028236

Parties:

	Complainant	Respondent
Parties	Karla Kyne	Hse West Pccc

Representatives

Niamh McGowan BL instructed by Comyn Kelleher Tobin Solicitors

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00036233-001	19/05/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00036233-002	19/05/2020

Date of Adjudication Hearing: 04/04/2022 & 23/09/2022

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The hearing was heard remotely pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, and that this decision would not be anonymised and there was no objection to same. Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Any submissions received were exchanged. The complainant gave evidence under oath and for the respondent, Ms Bernadine McGlade HR Manager gave evidence under oath and Mr Damian Mularkey Employee Relations Manager gave evidence under affirmation.

Background:

The complainant submits that she was discriminated against on the grounds of age by the failure of the respondent to proceed with her promotion; by making the promotion conditional on all back fills being filled and by giving the post to someone younger owing to a legacy transfer policy (LTP). The complainant further submits that she did not receive equal pay because of her age.

By way of background, changes were agreed around 2003 that there would be no further recruitment of Area Medical Officers (AMOs) and that the then grade of Senior Area Medical Officers (SAMOs) would be replaced with the grade of Senior Medical Officers (SMOs). The role of SMO required a Masters/Diploma in Public Health or equivalent. It was further agreed that any new doctors wishing to pursue careers in Community Health Medicine would do so at SMO level.

There are 9 community health organisations (CHOs) across the country and in the complainant’s specific community area referred to as CHO2; there exists a transfer panel. This transfer panel, referred to as the Legacy Transfer Panel (LTP), covers Galway, Mayo and Roscommon and facilitates movement within CHO2. If a post is not filled through the LTP, then the position is passed to the national panel.

Summary of Complainant’s Case: CA-00036233-001

Preliminary Issue #1:

In response to the respondent’s preliminary issue that the complaints are frivolous and or vexatious the complainant denies same.

Preliminary Issue #2:

In response to the respondent’s preliminary issue that the complaints have been determined upon; the complainant submits that her complaints are new complaints and differ from previous complaints and denies that her complaints had been previously determined upon.

Substantive Issue:

The complainant works as an AMO and her year of birth is 1955 and at the time of the submission of the complaint she was aged 64. In 2019 there was a need for additional medical staff to facilitate a vaccination programme. In the area that the complainant works (CHO2) there was the allocation of 0.4 position at the SMO level. The complainant was advised on 28th August 2019 of her success in securing this 0.4 role which she accepted. The complainant was disappointed that she could not be released until backfills were agreed. She was upset that her role would be backfilled with an SMO. While the backfill for the complainant was agreed upon, there were delays with the appointment of other backfills and the offer was withdrawn. The complainant’s complaint was received by the WRC on 19/05/2020 and since that time the 0.4 role has been filled with a different candidate and the complainant has been offered a different SMO role on a temporary basis.

It was the complainant’s belief that delays in her backfill should not have delayed her starting a 0.4 specified purpose post of SMO. The complainant further believes that the respondent discriminated against her by withdrawing an offer they made to her and that giving it to somebody else younger though the LTP discriminated against her on the grounds of her age.

The complainant gave evidence that she is part of an older group of workers who are no longer recruited to the position of AMOs and while suitably qualified for an SMO post she has been discriminated against. New people recruited to this role are given the title of SMO. The complainant has the necessary qualifications for the SMO role but is prevented because of the LTP that allows persons in CHO2 where the complainant works, to get priority to transfer to an existing position in CHO2 and this LPT does not exist in other CHOs. The complainant said that in March 2018 the IMO reached an agreement regarding a different geographical area and the complainant submitted it is unfair and unjust to only apply that agreement to that area and the complainant does not get the benefit of it. The complainant said that she had been selected for a 1.0 SMO role in Roscommon and representation was made on her behalf that she should be allowed to stay in Galway with the SMO role, but the response was that there “cannot be deviation (from principles and standards)”. The complainant was left with no alternative but to withdraw her application for 1.0 wte SMO role as the 4 hours’ drive was not recommended owing to health reasons. The complainant said she recently got offered a 1.0 WTE SMO position in Galway on a temporary basis and that this was after her submission of the complaint to the WRC.

Under cross examination the complainant said that she did not believe that her appointment to a role should be conditional on the employer securing a backfill and that it was in breach of the union agreement. The complainant said her situation differed to others as she would not have been leaving her department and therefore a backfill was not appropriate and her backfill would be younger than her. The complainant said that correspondence from the IMO to the employer referred to the length of time that the complainant was awaiting an SMO role and that time and age are related. The complainant said that there was no mention of age in the role and that she asked could the respondent have in place the arrangements that are in place in a different geographical area and that she was never told why the post was withdrawn. The complainant said she was offered a role which was then given to someone else and that this was wrong.

Summary of Respondent’s Case: CA-00036233-001

Preliminary Issue #1:

The Respondent submits that the within complaint should be dismissed on the grounds that it is frivolous and vexatious.

Preliminary Issue #2

Further or in the alternative the Respondent submits that the principle of res judicata applies to the within complaint as the matter has already been adjudicated upon both in the WRC and the Labour Court where the Complainant’s complaints were not upheld. It was submitted that the same matter has also been litigated, by multiple other employees of the Respondent and in respect of the same recruitment processes the Complainant challenges, none of which were successful. The complainant’s multiple complaints were the subject matter of decisions of the Workplace Relations Commission (WRC) including ADJ-00013657, ADJ-00021516 and concluded that the Complainant had not established a prima facie case of discrimination on age grounds in respect of the existence and operation of the Legacy Transfer Panel (LTP) or in the failure to promote the Complainant or in unequal pay. The Labour Court upheld the decisions of the Adjudication Officer in its Determination ADE/20/79 and in ADE/20/78.

Substantive Issue:

The Complainant claims that, by virtue of her age, she has been discriminated against in terms of promotion. It was submitted that the complainant can provide no basis for this assertion other than setting out a sequence of events regarding a 0.4 fixed term SMO post in Galway. The complainant had been provisionally offered this in January 2020 subject to backfilling but which at the time of the Complainant’s complaint had yet to be filled because of backlogs in the process. The Complainant provides no evidence on which she maintains the appointment process and/or the operation of the transfer panel in CHO2, which she alleges has resulted in her being excluded from promotion to the SMO grade was discriminatory on age grounds. For reasons known only to her, the Complainant made no application for the promotional post of SMO between 1988 and 2014, despite being eligible to do so, thus by choice restricting her own promotional opportunities.

The complainant has applied for a number of positions of SMO. She was deemed unsuccessful in 2014, was successful at interview in 2015 but did not express an interest in any of the vacancies that have arisen since April 2015 until she applied for the aforementioned 0.4 fixed-term SMO post in Galway in or around September 2019. The Complainant was informed that she was successful in her application for the post, but it was determined that the Complainant could not be appointed to the post until a backfill was in place for the Complainant’s existing, to be vacated, AMO post.

The Complainant’s complaint form is based on a hypothesis that the backfill of her 0.4 post - had she been appointed to the SMO role, which she was not at the time of submission of her complainant - would be filled at SMO grade. The complainant submitted this would leave her working alongside a hypothetical colleague at different promotional and salary grades which she considered would be “unequal”. It was submitted that the complainant provided no basis on which she alleges this “unequal” situation arises because of discrimination on age grounds. The Complainant’s assertion is that she should have been placed in the 0.4 post in January 2020 without delay. Some of the Complainant’s submission addresses issues which postdate the date of the submission of the Complainant’s WRC complaint form and are therefore wholly irrelevant for consideration. Of the relevant sections of her submissions the Complainant merely recites a sequence of events from when she had hoped to take up the 0.4 SMO post in January 2020 until she was informed, on 18th May 2020, that until her replacement’s post was backfilled, she would not be appointed to the role. It is commonplace in the Respondent not to promote individuals until their post has been backfilled. While the Complainant may well have felt let down by the delay in her appointment, she provides no basis on which she maintains it is discriminatory on age grounds. It is submitted that the Complainant cannot make any such assertion as the decision not to remove a person from their post until that post has been backfilled is a legitimate business practice and commonplace within the Respondent.

The respondent submitted that the Complainant’s case is spurious and being brought solely for the purpose of pursuing an IR agenda. Secondly it is the Respondent’s position that the Complainant does not have locus standi to bring this claim in circumstances where she has not identified any alleged incident of discriminatory treatment. The Complainant identifies 13th January 2020 as the latest date of discrimination in respect of a failure to promote her. In the details supporting this complaint this is the date in which she informed her manager that she wished to take up her 0.4 fixed-term SMO post in Galway with effect from 15th January 2020. She does not identify any act of discrimination on the part of the Respondent.

Without prejudice to the foregoing the Respondent submits that the Complainant has failed to establish a prima facie case that it has acted in a discriminatory manner, either directly or indirectly on age grounds, in withholding the filling of her post pending backfilling. Finally, even if it is held that the Complainant has established a prima facie case of indirect discrimination on age grounds, which they deny, it is the Respondent’s contention that same was a proportionate means of achieving a legitimate aim of the Respondent and accordingly is objectively justified.

Evidence of Bernadine McGlade HR Manager was that backfilling of positions is common practice and that it is not unusual for managers to want to replace persons who are being promoted. She said that the age of a person is not an issue and that the person given the 0.4 role was given it on 5th August 2020 and that it is not unusual for there to be delays in backfilling. Under cross examination Ms McGlade said that the HR person who normally looks after primary care is out on maternity leave. She said that the Forsa document applies to the complainant regarding backfills within 4 weeks, but it is not always possible. Generally, managers do not release person unless there is a backfill. She said it was her understanding that the complainant’s post was withdrawn and someone else appointed. The transfer panel is used for permanent posts.

Evidence of Mr Mularkey was that he is not involved in recruitment and that the transfer panel was introduced in the late 1980s following negotiations with the union and applies in the CHO2 area on a grade-to-grade basis. Under cross examination Mr Mullarkey said the transfer panel has priority and exists in the CHO2 area and that the IMO are satisfied with the retention of the LTP and that there may have been a grievance in relation to this in the past and the person on the LTP was successful.

Case law cited included: ADJ-00021516, ADJ-00013657, EDA2116 ADE/20/79, EDA2115ADE/20/78, EDA 2113ADE/20/85, EDA 2114 (ADE/20/86), ADJ-00013276, Dr Joe Quinn v HSE,Dr Kevin Brogan v HSE DEC-E2016-078, EDA1633, 2016/395 MCAATeacher v A Government Department ADJ-00019194, Henderson v Henderson (1843) 3 Hare 100, Jahan Company t/a Irema Ireland v Anne Power EDA1326, Gilroy v McLoughlin [1989] ILRM 133, Dublin Corporation v Building and Allied Trades Union [1996] 2 ILRM 547, Jahan Company t/aIrema Ireland v Power ED1326 , Divine-Bortey v London Borough of Brent [1998] IRLR 525, Southern Health Board v. Mitchell Labour Court AEE/99/8, Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20, Southern Health Board v. Mitchell ADA/99/8, Kenny & Ors v Minister for Justice, Equality and Law Reform Case C-427/11.

Findings and Conclusions: CA-00036233-001

The complainant’s complaint was received by the WRC on 15th July 2020 and at the time she was employed as an AMO. There are a number of parts to the complainant’s complaints including that she accepted 0.4 of an SMO post and that the backfilling of her AMO post would be filled at an SMO grade and that her complaints were that she was discriminated against by the failure of the respondent to proceed with promotion after she was asked to give a start date and that her promotion was conditional on all back fills being filled and that the post was given to someone younger owing to the LTP.

The respondent refutes this and raises a preliminary issue that the complaint should be dismissed on the grounds that her complaints are frivolous and vexatious. The respondent submits also that the principle of res judicata applies to the within complaint. They submit the matter, has already been adjudicated upon both in the WRC and the Labour Court where the Complainant’s complaints were not upheld. With regards to the substantive issue, it was submitted that during the cognisable period the complainant has failed to establish a prima facie case that the complainant has been discriminated against on the grounds of age and that even if the complainant had established a prima facie case, and the burden shifted to the respondent, then it was a proportionate means of achieving a legitimate aim of the Respondent and accordingly is objectively justified.

Preliminary Issue frivolous and vexatious:

The complainant denies that her claim is frivolous and vexatious. The meaning and scope of the words ‘frivolous and vexatious’ is set out in the Supreme Court Decision Farley v Ireland & Ors [(1997) IESC 60 and that the legal terms concern themselves with if the complainant:

‘…has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’ ‘

Having heard the submissions and evidence I do not find this instant complaint frivolous or vexatious.

Preliminary Issue res judicata

The respondent submits that the doctrine of res judicata prohibits the complainant from seeking to litigate the same issue twice and that the Complainant is estopped from proceeding with her claim. The complainant at times struggled to express how her complaint differed from previous complaints already adjudicated upon. However, I am satisfied that the complainant was given ample opportunity to present her complaints.

A concise definition of cause of action estoppel (and issue estoppel) was offered by Blayney J. in Gilroy v McLoughlin [1989] ILRM 133, at 136, as follows: -

“In cause of action estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction”.

The underlying rationale for the doctrine was explained by Keane J (as he then was) in Dublin Corporation v Building and Allied Trades Union [1996] 2 I.L.R.M 547 as follows:

“The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

I note in the Labour Court Decision EDA2115 HSE and Karla Kyne:

“The Complainant does not dispute that there is no barrier to her applying to go on the transfer panel and or applying for promotion. The Complainant’s complaint is that she cannot get promoted in her own department. The Complainant has not identified where she believes the entitlement to be promoted in her own department arises from or identified a cohort of workers who have such an entitlement. In response to a question from the representative for the Respondent the Complainant accepted that the reason she had not been promoted was not linked to her age but to her decision to decline to accept a post outside of her own Department. It is clear to the Court that no prima facie case has been made out and therefore her appeal must fail”.

I am satisfied that the Labour Court have already determined that there is no barrier to the complainant utilising the LTP and/or applying for promotion and therefore, in these circumstances I find that the matter regarding the LTP or ability to apply for promotion is Res Judicata and I do not have jurisdiction to re-hear this aspect of the complaint.

There are other parts to the complainant’s complaint namely, that the respondent said her appointment was conditional on securing backfills, the respondent withheld her promotion until such backfills were completed, the respondent withdrew her appointment to the 0.4 SMO role and the respondent appointed a person younger than her to the 0.4 SMO post and that this was discrimination on the age grounds. I am satisfied that these aspects to her complaint have not been already adjudicated upon.

Substantive Case

The complainant’s complaint was received on 20/05/2020 and she submits that the most recent date of discrimination was 13/01/2020. During the hearing the complainant gave detailed submissions and evidence which dealt with many matters outside of the cognisable period. I also note that in or about 16th June 2020 a candidate was advised that he was being offered an appointment to the temporary 0.4 post which is outside of the cognisable period. I note that the complainant gave evidence that it was her understanding that the candidate was advised of this during the cognisable period.

The complainant has submitted that during the cognisable period, she was discriminated against by the failure of the respondent to proceed with her promotion after she was asked to give a start date and that her promotion was conditional on all back fills being filled.

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, as follows:

‘‘6.—[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 6(2)(f) provides that

“(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

Section 85A (1) of the Act states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

The Labour Court in Melbury Developments v Arturs Valpeters stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn".

It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Having heard the complainant’s evidence and submissions and noting that she has been offered SMO roles and choose not to proceed with some of them, I must find that her complaints are “mere speculation or assertions, unsupported by evidence”. The complainant has failed to establish a prima facie case of discrimination on the grounds of age with regards to the failure of the respondent to proceed with her promotion, and the promotion conditional on filling back fills and for completeness the post given to someone else younger.

As noted previously the complaint regarding the Legacy Transfer Policy is Res Judicata and I do not have jurisdiction to hear that aspect of the complainant’s complaint. The complainant has failed to establish a prima facie case of discrimination with regard to the other aspects of her complaint and I must find that the complainant was not discriminated against.

Summary of Complainant’s Case: CA-00036233-002

Preliminary Issue #1:

In response to the respondent’s preliminary issue that the complaints are frivolous and or vexatious the complainant denies same.

Preliminary Issue #2:

Substantive Issue:

The complainant submits a complaint of unequal pay on the grounds of age and submits her comparators as Dr A and Dr B and that the complainant would be working alongside a person who would be doing the same work as her and that the reason for the inequity in pay was owing to the complainant’s age. The complainant submitted that she believed Dr B had received a favourable rights commissioner recommendation regarding a similar complaint but did not have a copy of same. The complainant submitted that a census existed now that was not available for her previous complaint which she had submitted regarding unequal pay and that there were a far greater number of persons of an older age employed at the AMO level.

The complainant works as an AMO. The complainant submitted that she had secured a 0.4 role at the SMO grade but that her remaining 0.6 role is at the AMO level despite the work being the same. The complainant submitted that indirect discrimination operates and that the appropriate comparator pool should be the CHO2 region. It was submitted that CHO2 operated an LTP, unique to the area and which is discriminating against the complainant as all vacant roles in the CHO2 area are referred to this Legacy Transfer Panel. If there are people within the CHO2 at the existing grade of the vacant role, then they can utilise the LTP to transfer. CHO2 consists of Mayo, Roscommon and Galway.

It was submitted that there are 6 AMOs in CHO2 all of whom are located in Galway, and 15 SMOs in CHO2 located in Mayo (6), Galway (5) and Roscommon (4). It was submitted that the mean age of AMOs in Galway is 60 and the mean age of the SMOs is 50 years. The complainant submitted that this concluded that there is a significant age difference in the AMOs and SMOs. It was submitted that there are other CHOs where there are no longer AMOs such as CHO1, CHO4 and CH07 and that only 1 AMO exists in CHO5 AND CHO6. The complainant disputed the respondent’s previously submitted statistics, and that the respondent should not be utilising any figures of AMOs and SMOS where they work in a hospital setting as her figures are based on community. It was submitted that the fact that the complainant and SMOs do the same work at a different grade means that there is no longer justification for difference in salary. The complainant submitted that she believed the average age around Ireland for AMOs is 58 and that the average age for SMOs is 48 years.

Under cross examination the complainant said that her data was correct regarding the age profile of the SMOs AND AMOs. The complainant said that correspondence from the IMO to the employer referred to the length of time that the complainant was awaiting on an SMO role and that time and age are related. .

Summary of Respondent’s Case: CA-00036233-002

Preliminary Issue#1:

The Respondent submits that the within complaint should be dismissed on the grounds that it is frivolous and vexatious and seeks a determination in that regard.

Preliminary Issue #2:

Substantive

The Complainant alleges, in Complaint Ref. CA-00036233-02, that the effect of the application of the 2003 Agreement has been that she has been discriminated against on grounds of age in circumstances where she claims to perform like work to SMOs who are younger than her and paid more than her. The Complainant has not produced any statistics to prove the primary facts on which she seeks to rely in alleging discrimination. Instead, she refers to two comparators as follows: a) Dr A and b) Dr B. Dr A is as noted by the Complainant to be 38 years of age and Dr B is employed noted by the Complainant to be 47 years of age. The Respondent understands that the Complainant’s date of birth is the 4th November 1955. The Complainant does not provide any information nor any basis on which she alleges that she has been treated less favourably than either or both comparators on grounds of age. The Complainant’s case goes no further than an assertion that she does the same work as the named SMOs but earns less than them and that they are younger than her. The Complainant maintains that she chose her comparators because they do similar work to her. It was respectfully submitted that the complainant cannot satisfy the prima facie burden of proof, which rests on her by choosing comparators that support the Complainant’s contention without addressing the population of AMOs and SMOs as a whole. The data used by the Complainant in respect of the various age breakdowns of AMOs and SMOs in all CHO regions is not accepted by the Respondent as valid.

Specifically, the census data being relied upon by the Complainant is inaccurate, not verifiable, relies on guesswork to provide individual ages, and is inconsistent. Further the census methodology is questionable in circumstances where none of the original data is provided for verification purposes. The complainant failed to use the appropriate approach including all issues arising must be determined by the use of the same comparators; comparators are valid only if they cover enough individuals, do not illustrate purely fortuitous or short-term phenomena and in general appear to be significant; valid comparators cannot be based upon groups chosen in an arbitrary manner or on an artificial/unrepresentative basis, the claimant must be in an equivalent situation to the comparators; and comparators must constitute a 'relatively large' number of employees.

It was submitted that it was clear that a comparator may not be based on an unrepresentative group. Insofar as the Complainant purports to rely on two specific individuals the basis on which she does so is not identified. It is the Respondent’s submission that the nomination of two comparators without consideration of the full cohort of AMOs and SMOs clearly indicates that the Complainant cannot discharge the prima facie burden of proof. It is submitted that a simple assertion, that because another person, who is employed at SMO level, is younger than the Complainant and paid more than her, is wholly inadequate to ground a claim that the differences in pay arise from discrimination on age grounds. The Complainant has to show that the differences in pay arise from discrimination on age grounds if she is to succeed in her claim. The Respondent submits that her complaint is fundamentally misconceived in that regard. Other than claiming she performs the duties carried out by the named comparator SMOs the Complainant has provided no objective evidence that she is performing like work to either her comparators and/or the cohort of SMOs employed nationwide by the Respondent.

In her evidence before the Labour Court in respect of her previous complaints the Complainant acknowledged that she had no direct knowledge of the work undertaken by either of her comparators. It was submitted that the Complainant has not provided any objective basis on which it can be concluded that she performs like work to an appropriate comparator pool. It is submitted that this is entirely insufficient to discharge the Complainant’s burden to establish a prima facie case that the pay differential between her and an appropriate comparator pool exists because of age discrimination and not some other reason.

The Respondent submitted that the Complainant’s comparator pool is inappropriate, and the WRC has no jurisdiction to hear the claim as advanced. Without prejudice to the foregoing the Respondent submitted that the WRC should find that the Complainant has not established a prima facie case that the difference in pay between the Complainant and any appropriate comparator pool is as a result of discrimination on grounds of age. Without prejudice to the Respondent’s position that the Complainant lacks locus standi, the Respondent submits that the Complainant has not made out a prima facie case that she has been discriminated against on age grounds either in terms of equal pay or access to promotion. The Respondent asks that the Complainant’s claims be dismissed and make a finding that the Complainant has not been discriminated against, by the Respondent, on the grounds of age.

Evidence of Mr Mularkey was that he is not involved in recruitment and that the transfer panel was introduced in the late 1980s following negotiations with the union and applies in the CHO2 area on a grade-to-grade basis. Under cross examination Mr Mularkey said the transfer panel has priority and exists in the CHO2 area and that the IMO are satisfied with the retention of the LTP and that there may have been a grievance in relation to this in the past and the person on the LTP was successful.

Findings and Conclusions: CA-00036233-002

The complainant is employed as an AMO and submits that she accepted 0.4 of an SMO post and that the backfilling of her AMO post would be filled at an SMO grade and the complainant would not receive equal pay and provides comparators Dr A and Dr B. The respondent refutes this and raises two preliminary issues, namely, that the complaint should be dismissed on the grounds of frivolous and vexatious and that the principle of res judicata applies to the within complaint. They submit the matter, has already been adjudicated upon both in the WRC and the Labour Court where the Complainant’s complaints were not upheld. With regards to the substantive issue, it was submitted that the Complainant’s comparator pool is inappropriate, and the Complainant has not established a prima facie case that the difference in pay is as a result of discrimination on grounds of age.

Preliminary Issue frivolous and vexatious:

Having heard the submissions and evidence I do not find this instant complaint frivolous or vexatious.

Preliminary Issue res judicata

A concise definition of cause of action estoppel (and issue estoppel) was offered by Blayney J. in Gilroy v McLoughlin [1989] ILRM 133, at 136, as follows: -

“In cause of issue estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction”.

The underlying rationale for the doctrine was explained by Keane J (as he then was) in Dublin Corporation v Building and Allied Trades Union [1996] 2 I.L.R.M 547 as follows:

I note in the Labour Court Decision EDA2116 HSE and Karla Kyne it is set out

“The Complainant’s complaint is that she is doing the same work as her two named comparators who are Senior Medical Officer’s and getting paid less”.

It is clear that the Labour Court have already determined that there is no barrier to the complainant applying for a promotion and that she has been offered SMO roles. I note that the Labour Court decision EDA2115 already determined regarding the complainant’s complaint of unequal pay that

“It is clear therefore that the reason she is on lower remuneration is because she has opted not to take a Senior Medical Officer position and is not in any way linked to her age. It is clear to the Court that a prima facie case has not been made out and therefore her appeal must fail.

I am satisfied that the Labour Court have already made a decision on the matter before me. In those circumstances I find that the matter is Res Judicata and I do not have jurisdiction to re-hear the complaint.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00036233-001

The aspect of her complaint regarding the Legacy Transfer Policy is Res Judicata and I do not have jurisdiction to hear that aspect of the complainant’s complaint. With other aspects of her complaint, the complainant has failed to establish a prima facie case of discrimination and I must find that the complainant was not discriminated against.

CA-00036233-002

I find that the matter is Res Judicata and I do not have jurisdiction to hear the complaint.

Dated: 28th April 2023

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Equal pay, discrimination, age, prima facie, promotion